LAW BLOG NEWSLETTER
from The Wall Street Journal Online
January 13, 2009 -- 6:10 p.m. EST
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TODAY'S POSTS
- Lippman to Follow Kaye as New York State Chief Judge
- Cadwalader's Partner Profit Down 30%; Chairman: Not Too Shabby
- For Criminal Defendants, a Big Day at High Court
- The Madoff Bail Decision: Not 'Governed . . . by Visceral Reaction'
- Immigration Cases Represent Half of Federal Prosecutions. Discuss.
- Judge Says: There Shall be Hygiene in the Court!
- Harbison v. Bell or Scalia v. Breyer?
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Lippman to Follow Kaye as New York State Chief Judge
Former New York state Chief Judge Judith Kaye with Former Chief Administrative Judge Jonathan Lippman. (AP/Ed Bailey) After 15 years of Judge Judith Kaye, New York is getting a new chief justice. Tomorrow, reports the NYLJ and the NYT, Gov. David A. Paterson will introduce 63 year-old Justice Jonathan Lippman as his nominee to become New York's next chief judge.
Lippman (NYU, NYU Law) has been presiding justice on the Appellate Division, First Department, since 2007 and between 1996 and 2007 he was the longest-serving chief administrative judge in state history.
According to the Times, Patterson reportedly selected Lippman from a list of seven, including George Carpinello, a partner at Boies Schiller and a former professor at Albany Law School; Evan Davis, a partner at Cleary Gottlieb, who was counsel to Gov. Mario Cuomo; Steven Fisher, associate justice in the second department of the Appellate Division of State Supreme Court; Theodore Jones Jr., associate judge on the Court of Appeals, who was a State Supreme Court justice in Brooklyn from 1990 to 2006; Eugene Pigott Jr., associate judge on the Court of Appeals, who was a State Supreme Court justice from 1997 until 2006; and Peter Zimroth, a partner at Arnold & Porter, who was corporation counsel from 1987 to 1989, under Mayor Edward Koch.
See and Post Comments: http://blogs.wsj.com/law/2009/01/13/lippman-to-follow-kaye-as-new-york-state-chief-judge?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Cadwalader's Partner Profit Down 30%; Chairman: Not Too Shabby
When Cadwalader cut 96 lawyers in July, the firm's management blamed the "severe contraction" in the market for mortgage-backed securities. Christopher White, the firm's chairman, told the Journal: There was a bubble, we rode that bubble, it contracted, and we adjusted. Even knowing what I know now, I wouldnt have changed a thing.
What does White say now, given the firm's announcement yesterday that its average profits per equity partner -- or PPP -- fell more than 30 percent, from $2.725 in 2007 to $1.88 million in 2008? "I'd like to think that we put most of our pain in 2008," White tells the American Lawyer, adding that the $1.88 million profit number "is not too shabby."
Revenue fell to $506 million, down 13.8 percent from $587 million. Interestingly, White told AmLaw that, following the Lehman bankruptcy in September, many financial services clients began hoarding cash, making collections difficult. That remains "an ongoing issue," he said.
Word on Cadwalader's numbers follows yesterday's news that a handful of large West coast firms saw declining revenues in '08 as well.
See and Post Comments: http://blogs.wsj.com/law/2009/01/13/cadwaladers-partner-profit-down-30-chairman-not-too-shabby?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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For Criminal Defendants, a Big Day at High Court
"Continuing its trend of being the most pro-defendant appellate court in the nation on sentencing issues, the Supreme Court issued two opinions this morning and both involve wins for defendants."
So begins a recent blog post by the Sentencing Law & Policy blog's Doug Berman. He's referring to two cases. One is Chambers v. United States, in which the Supreme Court reversed the ruling below. As Scotus Blog's Lyle Denniston explains it, the Court ruled that the crime of failure to report to jail or prison to serve a sentence is not the same as an escape, and is not a violent felony that can lead to a longer prison term under federal law. The decision clears up a conflict among the federal circuit courts, and rejects a Justice Department argument that an aversion to penal custody should always be treated as if it were an escape, writes Denniston.
In the other case, Jimenez v. Quarterman, the Court reversed the ruling below, which found for the state. It held that if a state prisoner is allowed by a state court to file an appeal that ordinarily would be too late, that will delay the start of the one-year filing period for pursuing a habeas challenge until after the state appeal is resolved. Justice Thomas, writing for the majority, said that a state conviction is not final for federal habeas purposes when a state has allowed an out-of-time, direct appeal of the conviction.
Click here for the Scotus blog report.
See and Post Comments: http://blogs.wsj.com/law/2009/01/13/for-criminal-defendants-a-big-day-at-high-court?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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The Madoff Bail Decision: Not 'Governed . . . by Visceral Reaction'
When it comes to Judge Ronald Ellis's decision to deny the prosecution's request to jail Bernie Madoff, the prevailing mood appears to be outrage.
"It's absolutely ludicrous that he's not in prison," Steven Salbe, whose family had an account with Madoff since the 1960s, told the Journal.
"Judge Elliss explanation is not very satisfying," writes the New York Times, adding, "he goes on to justify his decision by essentially saying that Mr. Madoff can afford to buy his way out of the pokey."
We here at LBHQ understand the resentment, especially from potential Madoff victims, but we're circumspect when it comes to criticism of Ellis's opinion.
So is Wayne State Law Prof Peter Henning, formerly of the White Collar Crime Prof blog. "The whole idea behind bail is to ensure that the defendant appears and also to impose conditions that will protect the community," Henning told the Law Blog. "I think the magistrate judge was on pretty solid ground, as much as it drives everyone nuts. We have this darn thing called due process. And the judge followed the law."
Henning continued: "It was a stretch to try to get his bail revoked. Unfortunately, despite what people feel, this is governed by a statute -- not visceral reaction -- which sets forth the requirements and the government's burden of proof. If the magistrate had sent him to jail, I think theres a decent chance a district court judge wouldve overturned it." (As it stands now, Judge Ellis agreed to stay his order by two days while the government appeals.)
What about the prosecution's apparently novel argument that dissipation of assets could constitute a kind of economic threat to the community? "The economic argument Ive not seen in other cases," said Henning. "White-collar defendants get out on bail. Thats pretty much how it works. I could see the argument working. If he were to somehow take action to frustrate restitution, that could be grounds for putting him in jail. But just the threat of him dissipating assets, when the government is watching him, that's a tough case to make."
See and Post Comments: http://blogs.wsj.com/law/2009/01/13/the-madoff-bail-decision-not-governed-by-visceral-reaction?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Immigration Cases Represent Half of Federal Prosecutions. Discuss.
Last night we watched "The Visitor," an excellent film about a young Syrian musician, Tarek, who winds up in a New York City detention center. Midway through the movie, the man's mother and newfound friend, played by Richard Jenkins (the deceased father from "Six Feet Under"), visit an immigration lawyer to see about extricating Tarek.
The lawyer tells them that, after 9/11, "the governments approach has changed radically. . . Its very black and white now. Either you belong or you dont. Which means a lot of people who have been living here for years are suddenly being swept up and thrown into detention."
We thought of the movie, which came out last spring, while reading today's NLJ article on the soaring rate of immigration prosecutions during the Bush administration. According to data from the Transactional Records Access Clearinghouse, immigration prosecutions represent more than half of all federal prosecutions, up from 18% in the first fiscal year of Bush's presidency. A total of 11,454 immigration prosecutions in September 2008 represents a 700% increase from the same month in 2001, the year Bush took office, according to TRAC.
The numbers, note the NLJ, bolster concerns expressed by federal judges in border states that their dockets have been inundated with immigration cases. The five federal districts with the largest share of immigration prosecutions in 2008 were the Southern District of Texas in Houston, the District of Arizona in Phoenix, the District of New Mexico in Albuquerque, the Western District of Texas in San Antonio and the Southern District of California in San Diego.
The leading immigration charges include illegal reentry of a deported alien, harboring illegal aliens and fraud and misuse of visas and work permits.
See and Post Comments: http://blogs.wsj.com/law/2009/01/13/immigration-cases-represent-half-of-federal-prosecutions-discuss?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Judge Says: There Shall be Hygiene in the Court!
On Friday, we addressed the propriety of citing obesity as the reason for dismissing a juror. Today, let's turn to body odor. (That's right, body odor.)
In the murder trial of Commonwealth v. Young, Mass. Superior Court Judge Nancy Staffier-Holtz dismissed a female juror. And this was her explanation:
I just want the record to reflect, I guess, to be blunt, [the juror], for whatever reason, had some very bad, I guess to be blunt again, body odor, which was extremely strong, and I was able to detect in my lobby, as was the clerk, which is a personal matter for that potential juror, but for the fact that her personal problem was [of] such a magnitude that other jurors who had already been picked . . . either by act or words had indicated discomfort with that problem. The judge then addressed the defendant's objection to the juror's removal: "[M]y concern is not her background . . . given the strength of the body odor, I'm satisfied that the other jurors would be put at a distinct disadvantage in their efforts to concentrate." (Here's a report from Legal Blog Watch.)
Was the move reversible error? It seems not. On appeal, post-conviction, the appellate court held:
The defendant claims furthermore that the dismissal of the juror was improper because she was of the same race as the defendant, apparently arguing that the dismissal affected the racial composition of the jury. There is nothing in the record that shows the ethnic or racial composition of the jury. The record does show that the judge noted on the second day of empanelment that "we have a pretty decent pool here today, just even in terms of ethnic, racial mix." We note that after the jury were empaneled, the defendant did not make any challenge to the composition of the jury. . . . We hold that the judge's dismissal of the juror was not an abuse of her discretion.
See and Post Comments: http://blogs.wsj.com/law/2009/01/13/judge-says-there-shall-be-hygiene-in-the-court?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Harbison v. Bell or Scalia v. Breyer?
Conflicting jurisprudence turned to judicial crossfire at the High Court yesterday, when Justice Scalia took issue with a comment made by Justice Breyer.
The court, as the NYT reports, was trying to make sense of a federal law that provides lawyers to poor inmates on state death rows when their cases move to federal court. The question for the justices was whether the law also requires the federal government to pay those lawyers to present clemency petitions to governors and other state officials.
For the background of Harbison v. Bell, go to Scotusblog. Here's the transcript of the argument.
William M. Jay, an assistant to the solicitor general, said the law applies only to federal proceedings before a federal officer. But Dana C. Hansen Chavis, a federal public defender, argued, among other things that the phrase executive or other clemency indicated Congress's intent to include state proceedings in which other parts of the government -- i.e. the federal government -- play a role in granting clemency.
Scalia liked that textual argument. What he didn't like was when his colleague, Justice Breyer, mentioned that Representative John Conyers Jr. (D., Mich.) had said he understood the law to apply to state clemency proceedings.
Scalia: I thought this was a federal law. Is this a Conyers law; is that what it is here?
Breyer: He happens to be the person who wrote it. . . . I think Conyers knew what he said.
Scalia: Did his colleagues know what he said?
Breyer: Yes, they did.
Chief Justice Roberts [addressing the assistant SG]: I'm sorry. Counsel, you lead. We direct our questions to counsel.
See and Post Comments: http://blogs.wsj.com/law/2009/01/13/harbison-v-bell-or-scalia-v-breyer?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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LAW VIDEO
WSJ's Amir Efrati explains why a federal judge denied a request to jail money manager Bernard Madoff.
http://online.wsj.com/video/madoff-to-remain-free-court-decision-explained/41A7D510-7BCB-466D-B2E2-4137B097E112.html?mod=djemWLB&reflink=djemWLB
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